Perkiomen Valley School District. v. S.D., No. CV 18-2093, 2019 WL 4675001, — F. Supp. 3d —-, 75 IDELR 67 (E.D. Pa. Sept. 24, 2019), appeal filed, No. 19-3410 (3d Cir. Oct. 18, 2019), is noteworthy as an example of a reviewing court’s careful examination of evidence relating to the development of a student’s IEP goals – in this case specifically related to the student’s progress in reading fluency – in light of the Supreme Court’s interpretation of the FAPE requirement in Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 69 IDELR 174 (Mar. 22, 2017).
The Perkiomen v. S.D. case involved a child with dyslexia who attended district schools from third grade. Her IEP was revised in May 2015, the end of the third grade year, and it listed her reading fluency at 38 words correct per minute (wcpm) at a third grade level and 58 at a second grade level. The IEP set a goal of 127 wcpm at the 3rd grade level. That December, when the student was in fourth grade, the parents expressed concern about her progress, and a meeting was held to revise the IEP. The district reported that the student was up to 80 wcpm at a second grade level. Another meeting to update the IEP occurred the following month; the IEP goals remained unchanged though both meetings. In May 2016, at the end of the fourth grade year, the revised IEP reported 78 wcpm on a fourth grade probe. At a second grade level, her score was 96 wcpm. The new IEP retained the goal of 127 wcpm at a third grade level. In May 2017, the district issued a three-year reevaluation and the parents obtained a private evaluation; the IEP team revised the IEP the next month in preparation for the student’s sixth grade year. Her score at a third grade level was a median of 103.5 wcpm on four tests; she managed 108 wcpm at a second grade level. Her score at a fourth grade level was 76 wcpm. The IEP set a new goal of 107 wcpm at a fourth grade level. Dissatisfied, the parents removed the child from the public school that summer and enrolled her in a private school.
The parents filed for due process and alleged denial of free, appropriate public education for the 2015-16 (fourth grade), 2016-17 (fifth grade), and 2017-18 (sixth grade) school years, requesting compensatory education for 2015-17 and tuition and transportation reimbursement for 2017-18, as well as reimbursement for the private evaluation. The District contended that while the reading fluency goals were “a bit aggressive,” the reading instruction provided was appropriate in meeting the student’s needs. The hearing officer found a denial of FAPE, stating that the district denied the parents meaningful participation in understanding the student’s programming as a result of deficiencies in the reading fluency progress data and the handling of reading fluency in the district’s programming. The hearing officer granted tuition and transportation reimbursement for 2017-18.
The district court reversed. Citing Endrew F., it said that an IEP does not have to aim for grade-level achievement if that is not a reasonable prospect for the student, and that the IEP must be reasonable but need not be ideal. It also noted that since the program for one student is different than the program for another student, the IEP must be “constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.”
Relying on Third Circuit precedent, the court also declared that an IEP should not be evaluated solely on the basis of the child’s progress or lack of it. The hearing officer had ruled that the district met its obligation to provide FAPE in all areas except reading fluency, including reading comprehension, and the district court agreed. The hearing officer said that the progress in reading fluency was not adequate, however. The hearing officer found that there was a lack of a third-grade level reading fluency baseline in the May 2016 IEP despite the goal in the May 2015 IEP calling for instruction on a 3rd grade probe. The probe for a third grade level was not attempted, yet the May 2016 IEP was still written for a third-grade level probe. The district argued to the court that it tested the student at the second and fourth grade levels because she was on a second-grade instructional level but in fourth grade; thus there was no deficiency in the data. Moreover, the June 2017 IEP reported 103.5 wcpm at a third grade level, indicating that she had received instruction sufficient for her to make progress. According to the court, the hearing officer erroneously believed that there was no fourth grade reading fluency data on the July 2017 IEP. After removing that conclusion, said the court, all that was left was the fact that the student did not meet her fluency goals in a timely manner. Though “troubling,” 2019 WL 4675001, at *7, under Third Circuit precedent (some of it pre-Endrew F.), that was not enough. The court noted steady progress in the student’s reading fluency over the years and that “the IEP was reasonably calculated to enable [the student] to receive meaningful benefits in light of her individual potential and individual abilities.” Even with due weight to the hearing officer decision, the court said, the district provided appropriate education.
On procedural issues, the court also found the hearing officer in error. The missing data said to prevent the parents from participating was in fact present, according to the court, the overall program met IDEA standards, and the law does not require perfect parental comprehension of the student’s IEP. The court also rejected an argument that the district violated Section 504 and it denied a claim for attorneys’ fees. The court did, however, rule that if the parents had received tuition payments from the district they need not pay them back, because requiring repayment would discourage the parents and others from exercising IDEA rights.
If the district court’s analysis is correct, the hearing officer overlooked a critical datum as to reading fluency, one that a careful evaluation of the record would have revealed. Based on the district court opinion, there is no indication that the hearing officer would have reached any conclusion different from that of the district court had the hearing officer realized that the information was present all along. But, more importantly this court applied the “must offer an IEP reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances” by considering the student’s “aggressive” reading fluency goals and her progress data on those goals over several years.